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Selvamuthu Vs. P.K. Chinnappan Chettiar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1926Mad361
AppellantSelvamuthu
RespondentP.K. Chinnappan Chettiar
Cases ReferredDaulat Singh v. Brinda Balder
Excerpt:
- - in the calcutta case the witnesses summoned had received the summonses and failed to appear and the learned judges held that the court had no discretion under section 244 to refuse to compel attendance of a witness to whom the court had already issued process......thus:the magistrate may, if he thinks fit, on the application of the plaintiff or the accused, issue summons to any witness directing him to attend or produce any document or other thing.3. under the old code there was the phrase ' compel the attendance of any witness or the production of any document,' but in the present code, the words used are: ' summon any witness directing him to attend or produce any document.' under the present code evidently, the court cannot compel a witness to appear before it, if the witness refuses to appear. if the witness refuses to appear, probably, he may be liable for disobedience of summons, but the question is whether a party, complainant or accused, is entitled to ask the court as a matter of right, to compel attendance of any witness, who does.....
Judgment:
ORDER

Devadoss, J.

1. This is an application to revise the order of the First Class Bench of Magistrates, Palghat. The point raised by Mr. Nambiar is that the Bench of Magistrates ought to have sent fresh summonses to the witnesses cited by the petitioner. The petitioners cited the Extra Assistant Conservator of Forests and a forester as two of his witnesses to prove the evidence of alibi set up by him. The Bench Magistrate did issue sommonses to them, but they refused to accept service, as the summonses had not been sent through their superior officer. The petitioner applied to the Bench at a late stage for issuing fresh summonses but the Bench refused the request. It is contended before me that the Beach had no discretion to refuse to issue fresh summonses for the witnesses. Reliance is placed upon a decision in Daulat Singh v. Brinda Balder [1903] 30 Cal. 121. There, the learned Judges held, that if a Magistrate sent summonses to the witnesses in a summons case the Magistrate had no discretion afterwards to refuse to issue fresh summons if the witnesses did not appear in obedience to the summons. This decision was based under the old Code. In the old Code the words were:

The Magistrate may, if he thinks fit. on the application of the plaintiff or the accused issue process to compel the attendance of any witness or the production of any document or other thing.

2. There has been a change in this paragraph in the new Code which reads thus:

The Magistrate may, if he thinks fit, on the application of the plaintiff or the accused, issue summons to any witness directing him to attend or produce any document or other thing.

3. Under the old Code there was the phrase ' Compel the attendance of any witness or the production of any document,' but in the present Code, the words used are: ' Summon any witness directing him to attend or produce any document.' Under the present Code evidently, the Court cannot compel a witness to appear before it, if the witness refuses to appear. If the witness refuses to appear, probably, he may be liable for disobedience of summons, but the question is whether a party, complainant or accused, is entitled to ask the Court as a matter of right, to compel attendance of any witness, who does not care to attend in obedience to a summons. In the Calcutta case the witnesses summoned had received the summonses and failed to appear and the learned Judges held that the Court had no discretion under Section 244 to refuse to compel attendance of a witness to whom the Court had already issued process. It cannot be said that under the present Code, the Magistrate is bound to compel the attendance of a witness who has received the summons. Considering the change in the wording of Sub-section (2) of Section 244, I think the present case is distinguishable from the Calcutta decision. I hold that the Magistrate is not bound to re-issue the summons if a witness summoned by him does not care to appear. It is in the discretion of the Magistrate to issue fresh summons if he likes, but the Code does not compel him to issue fresh summonses to the witnesses to whom summonses have once been sent.

4. The petitioners must have known that the officers to whom he wanted summons-were subordinate to some other officer and it was his duty to have informed the Magistrate of that fact when he asked for. summonses for the two witnesses. He not having done so, the Magistrate's declining to grant time and convicting him is correct.

5. The petition is dismissed.


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